Enos-Martinez v. Board of County Commissioners of the County of Mesa, The

Filing 165

ORDER Granting in part and Denying in part 81 Defendants Dispositive Motions; Defendants Motion for Summary Judgment on Plaintiffs hiring claims based on age discrimination is DENIED; Defendants Motion for Summary Judgment on Plaintiffs job termi nation claim based on age discrimination is DENIED; Defendants Motion for Summary Judgment on Plaintiff's compensation claims based on age and race discrimination is GRANTED; Defendants Motion for Summary Judgment on Plaintiffs hostile work e nvironment claim based on age and race discrimination is DENIED; Defendants Motion to Dismiss is DENIED as MOOT; and The Court finds that Plaintiff has abandoned her claim that the July 31, 2008 Improvement Action Plan was an independent adverse employment action giving rise separately to a claim of discrimination, by Judge William J. Martinez on 4/5/2012.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 10-cv-00033-WJM-DLW
CINDY ENOS-MARTINEZ,
Plaintiff,
vs.
THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF MESA,
Defendant.

ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S DISPOSITIVE MOTIONS

Plaintiff Cindy Enos-Martinez brings this action against Defendant the Board of
County Commissioners of the County of Mesa, Colorado for employment discrimination
alleging that she was discriminated against based on her age and race. Before the
Court are Defendant’s Dispositive Motions requesting summary judgment and moving
to dismiss portions of Plaintiff’s Complaint (the “Motion”) (ECF No. 81.)
For the reasons set forth below, Defendant’s Dispositive Motions are GRANTED
in part and DENIED in part.
I. BACKGROUND
A.

Factual Background
The following facts are taken from the record and are undisputed:
Plaintiff is a Hispanic-Latino female of more than 54 years of age who began

working for Mesa County, Colorado (the “County”) in 1977. (Compl. ¶¶ 15, 16.)
Defendant is the Board of County Commissioners for Mesa County (“BOCC”). (Id. ¶ 2.)

In 2002, Plaintiff became a Benefits Specialist for the County. (Id. ¶ 19). In
January 2007, Stefani Conley became the head of the Mesa County Human Resources
Department, and became Plaintiff’s direct supervisor. (Id. ¶¶ 21, 24-25.)
In May 2008, Ms. Conley appointed Sheryl Coffey to the County’s newly created
position of Compensation/Benefits Manager. (Id. ¶ 42). The Compensation/Benefits
Manager took on a number of responsibilities, including supervising Plaintiff. (Id. ¶ 40.)
Plaintiff was not given the opportunity to apply or interview for this position. (Dep. of
Stefani Conley, at 155:16-156:8.)
On August 5, 2008, Plaintiff submitted a request for Family Medical Leave Act
(“FMLA”) leave, and began her leave on August 12, 2008. (Notification of Family
Medical Leave Act, attached to Motion, Ex. L.) The FMLA Notification includes a notice
to the employee that the employee will be returned to the same or equivalent position if
leave (total of paid and unpaid time) does not exceed twelve weeks. (Id.)
On or about October 28, 2008, Plaintiff received a letter from Sandra Perry, the
Mesa County Human Resources Manager, which stated that: (1) Plaintiff’s FMLA leave
would expire on November 4, 2008; (2) Plaintiff’s position would no longer be protected;
(3) Plaintiff had 237.75 hours of sick leave remaining; and (4) upon exhaustion of sick
leave, Plaintiff’s employment with Mesa County would end. (Perry Letter, attached to
Motion, Ex. J; S. Perry Affidavit ¶ 8). In November 2008, Plaintiff also received a copy
of an Improvement Action Plan from the County, which stated: “Outcome: Proposed
letter of dismissal.” (November 2008 Improvement Action Plan, attached to SJ
Response, Ex. 22.)

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On November 4, 2008, Plaintiff, along with her attorney, had a meeting with
County representatives to discuss Plaintiff’s employment status. (County Attorney
Letter, attached to Motion, Ex. N; M. Dechant Affidavit ¶ 5.) At this meeting, Plaintiff
was advised that she could continue to use remaining sick leave as long as she was
employed by Mesa County, and that she could subsequently apply for open positions
advertised by Mesa County. (Id.) However, Plaintiff was also told that she was no
longer the Mesa County Benefits Specialist, and that the County would immediately
start recruiting to fill that position. (Dep. of C. Enos-Martinez, at 83:7-11.)
By letter dated December 22, 2008, Sandra Perry informed Plaintiff that her
allotted sick leave ended as of December 19, 2008, and that Plaintiff was no longer
employed by the County. (Letter from S. Perry, attached to Motion, Ex. O; S. Perry
Affidavit ¶ 11.)
B.

Procedural History

Plaintiff filed this action in District Court, Mesa County, Colorado on November
25, 2009, and the case was removed to this Court on January 7, 2010. (ECF Nos. 1,
2.) Plaintiff brings employment discrimination claims against Defendant. (Id.)
Specifically, Plaintiff claims that she was discriminated against based on her age in
violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.
(“ADEA”), and Colorado state law, C.R.S. § 24-34-402, and that she was discriminated
against based on her race in violation of Title VII of the Civil Rights Acts of 1964 and
1991, 42 U.S.C. § 2000 et seq. and Colorado state law, C.R.S. § 24-34-402. (Id.)

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On April 15, 2011, Defendant filed its Dispositive Motions. (ECF No. 81.)
Defendant seeks summary judgment pursuant to Federal Rule of Civil Procedure 56 on
all of Plaintiff’s claims, and seeks to dismiss certain of Plaintiff’s claims pursuant to
Federal Rule of Civil Procedure 12(b)(1). (Id.)
The Court bifurcated the two dispositive motions for the purposes of briefing.
(ECF Nos. 92, 109.) On May 23, 2011, Plaintiff filed her Response to the Motion to
Dismiss portion of Defendant’s Dispositive Motions. (ECF No. 97.) On June 9, 2011,
Defendant filed its Reply to Plaintiff’s Response to the Motion to Dismiss. (ECF No.
104.)
On February 24, 2012, Plaintiff filed her Response in Opposition to the Summary
Judgment portion of Defendant’s Dispositive Motions. (SJ Response (ECF No. 144.))
On March 12, 2012, Defendant filed its Reply to Plaintiff’s Summary Judgment
Response. (SJ Reply (ECF No. 149.))
These Motions are now ripe for resolution.
II. LEGAL STANDARD ON A MOTION FOR SUMMARY JUDGMENT
Summary judgment is appropriate only if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem
Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute
as to a material fact depends upon whether the evidence presents a sufficient
disagreement to require submission to a jury or, conversely, is so one-sided that one
party must prevail as a matter of law. Anderson v. Liberty Lobby Inc., 477 U.S. 242,

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248-49 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v.
U.S. Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987).
A fact is “material” if it pertains to an element of a claim or defense; a factual
dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a
reasonable juror could return a verdict for either party. Anderson, 477 U.S. at 248. The
Court must resolve factual ambiguities against the moving party, thus favoring the right
to a trial. Quaker State Mini-Lube, Inc. v. Fireman’s Fund Ins. Co., 52 F.3d 1522, 1527
(10th Cir. 1995); Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
The moving party bears the initial burden of showing an absence of evidence to
support the nonmoving party’s case. Celotex, 477 U.S. at 325. Where the non-movant
bears the burden of proof at trial, the non-movant must then point to specific evidence
establishing a genuine issue of material fact with regard to each challenged element.
See Reed v. Bennett, 312 F.3d 1190, 1194 (10th Cir. 2002); In re Ribozyme Pharms.,
Inc. Sec. Litig., 209 F. Supp. 2d 1106, 1111 (D. Colo. 2002).
III. ANALYSIS
A.

Motion for Summary Judgment
1.

Plaintiff’s Hiring Claims Based on Age Discrimination

Defendant argues that Plaintiff has not established a prima facie case for
discrimination regarding her hiring claims. (Motion at 9-12.) Specifically, Defendant
asserts that: (1) Plaintiff was not qualified to be the Compensation/Benefits Manager;
(2) even if Plaintiff were qualified, the County hired a more qualified candidate; and (3)
the Compensation/Benefits Manager position was not a newly created position, but was

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actually a reclassification of another job title. (Id.) Plaintiff disputes Defendant’s
assertions with various arguments described below. (SJ Response at 27-34.)
The ADEA prohibits an employer from discriminating “against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of
such individual’s age.” 29 U.S.C. § 623(a)(1). The ADEA protects workers “who are at
least 40 years of age,” 29 U.S.C. § 631(a), and was passed “‘to promote employment of
older persons based on their ability rather than age’ and ‘to prohibit arbitrary age
discrimination in employment.’” MacKenzie v. City and County of Denver, 414 F.3d
1266, 1276 (10th Cir. 2005) (quoting 29 U.S.C. § 621(b)).
To establish a prima facie case of age discrimination based on failure to hire, a
plaintiff must show: (1) that she belongs to the protected class; (2) that she applied for
and was qualified for the position; (3) that despite her qualifications she was not hired;
and (4) that the defendant filled the position with someone sufficiently younger to permit
an inference of age discrimination or continued to seek applicants from individuals
having qualifications similar to those of plaintiff. See Lewis v. McDonnell Douglas
Corp., No. 95-cv-1161, 1996 WL 77038, at *3, 77 F.3d 492 (10th Cir. Feb. 21, 1996)
(Table) (citing Coe v. Yellow Freight Sys., Inc., 646 F.2d 444, 448-49 (10th Cir. 1981)).
After a plaintiff has established a prima facie case, the burden is shifted to the
employer to articulate a legitimate, non-discriminatory reason for the employee’s
adverse employment action. See McDonnell-Douglas Corp. v. Green, 411 U.S. 792,
802 (1973). Once the employer comes forward with a facially non-discriminatory
reason for the adverse employment decision, the plaintiff is afforded a fair opportunity

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to demonstrate that the assigned reason for the allegedly discriminatory act was a
pretext or discriminatory in its application. Id. at 804; Morgan v. Hilti, Inc., 108 F.3d
1319, 1321 (10th Cir. 1997). Claims made under the Colorado Anti-Discrimination Act
(§ 24-34-301, et seq., C.R.S.), are subject to the same McDonnell-Douglas analysis.
See Colorado Civil Rights Comm’n v. Big O Tires, Inc., 940 P.2d 397, 400 (Colo. 1997).
Here, Defendant does not dispute that Plaintiff was a member of a protected
class (over the age of 40) when it created the Compensation/Benefits Manager position
or that the County hired a younger employee to fill that position. However, Defendant
argues that Plaintiff was not qualified for the Compensation/Benefits Manager position
because she did not hold a bachelor’s degree. (Motion at 9-11.)
The position description for the Compensation/Benefits Manager position states
that the minium qualifications are: “Bachelor’s degree in finance, accounting, business
or related field with three (3) years of progressively more complex responsibilities. Any
combination of education, training and experience which provides the knowledge, skills,
and abilities required for the job.” (Compensation/Benefits Manager position
description, attached to Motion, Ex. H.)
Defendant essentially urges the Court to read the word “and” in between the two
above sentences in order to find that holding a bachelor’s degree was, in all instances,
a prerequisite for the Compensation/Benefits Manager position. The Court declines to
do so. From the record before the Court it is evident that managerial positions at the
County do not require a bachelor’s degree. Indeed, Sandy Perry, the County’s Human
Resources Manager, does not herself hold a bachelor’s degree. (Dep. of S. Perry, at
14:12-19.) Moreover, Plaintiff had approximately 31 years of experience working for the
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County and had worked in the County’s Human Resources department since 2002.
(Comp. ¶¶ 16, 19.) She was responsible for administering the County’s benefits
programs and received favorable performance reviews. (S. Perry Affidavit ¶ 5;
Performance Appraisals, attached to SJ Response, Exs. 12-14.) Plaintiff also had
significant supervisory experience, and was only four credits short of a bachelor’s
degree in business in 2008. (Dep. of C. Enos-Martinez, at 8:19-24, 9:5-20, 44:2-8.)
Given Plaintiff’s education and experience, Plaintiff has shown a genuine dispute as to
whether she was in fact qualified for the Compensation/Benefits Manager position.
It is also undisputed that Plaintiff was not given the opportunity to apply for the
Compensation/Benefits Manager position. While Defendant argues that Plaintiff cannot
establish a prima facie case for discrimination because she never “applied for” the
position (Motion at 9-12.), the Compensation/Benefits Manager position was not posted
for applications and Plaintiff was never allowed to apply for the position despite her
express interest. (SJ Response at 35.) Thus, under these facts, Plaintiff has satisfied
her prima facie burden. See Medina v. Income Support Div., New Mexico, 413 F.3d
1131, 1137 (10th Cir. 2005); see also Whalen v. Unit Rig. Inc., 974 F.2d 1248, 1251
(10th Cir. 1992) (“[P]laintiff [need not] formally apply for the job in question.”)
Defendant asserts that, in the event Plaintiff has established a prima facie case
for discrimination, it had a legitimate, non-discriminatory reason for not allowing Plaintiff
to apply or interview for the Compensation/Benefits Manager position because it simply
“reclassified” the County’s Compensation Analyst position as the
Compensation/Benefits Manager. (Motion at 9.) Because Defendant has put forth a
non-discriminatory basis for its employment decision, the issue thus becomes whether
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Plaintiff can show a dispute of fact as to whether Defendant’s professed basis for its
decision was pretext for discrimination.
“A plaintiff produces sufficient evidence of pretext when she shows ‘such
weaknesses, implausibilities, inconsistencies, incoherenceies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable fact finder could
rationally find them unworthy of credence and hence infer that the employer did not act
for the asserted non-discriminatory reasons.’” Jones v. Okla. City Pub. Sch., 617 F.3d
1273, 1280 (10th Cir. 2010) (quoting Jaramilo v. Colo. Judicial Dep’t, 427 F.3d 1303,
1308 (10th Cir. 2005)).
Here, the County’s Human Resources manual includes specific provisions
regarding the reclassification of positions and the internal recruitment of County
employees for new positions. (Mesa County Human Resources Policies and
Procedures Manual, attached to SJ Response, Ex 17.) Plaintiff, in turn, has submitted
evidence showing that the alleged job reclassification did not comply with this manual.
(SJ Response at 31-32.) As such, a genuine dispute of fact exists as to whether the
Compensation/Benefits Manager position was reclassified from another position in
conformity with the County’s Human Resources manual.
The County also argues that the individual who was hired for the
Compensation/Benefits Manager position, Sheryl Coffey, was more qualified for the
position than Plaintiff. (Motion at 10-12.) However, the Court finds that Plaintiff has
submitted sufficient evidence to create a genuine dispute of fact as to which individual
was the more qualified candidate. Ms. Coffey had “limited compensation experience”
before working on the County’s compensation study in 2007, and only had only one
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year of compensation experience with the County before she was promoted to the
Compensation/Benefits Manager position. (Sheryl Coffey 2007-08 Performance
Appraisal, attached to SJ Response, Ex. 4.) In contrast, Plaintiff supervised over 20
employees at the County for over a decade, and had supervised temporary employees
and volunteers in the County. (Dep. of C. Enos-Martinez, at 43:17-22, 44:2-12.) Based
on the evidence before the Court, there is manifestly a genuine question of fact as to
whether Ms. Coffey was more qualified than Plaintiff to the be the
Compensation/Benefits Manager.
As such, and for the above stated reasons, genuine disputes of material facts
exist which preclude granting summary judgment to Defendant on Plaintiff’s job hiring
claims based on age discrimination.
2.

Plaintiff’s Job Termination Claim Based on Age Discrimination

Defendant argues that it is entitled to summary judgment on Plaintiff’s age
discrimination job termination claim because, since the County hired an older employee
to replace Plaintiff, she cannot establish a prima facie case of age discrimination.
(Motion at 12-15.) Defendant also argues that Plaintiff was never fired by the County,
but left her job voluntarily. (Id.) Plaintiff responds by arguing that the Tenth Circuit has
long recognized that a plaintiff is not limited to proving a prima facie case of age
discrimination, but can defeat summary judgment by showing evidence that Plaintiff’s
age was a determining factor in her job termination. (SJ Response at 37-39.)
The case law supports Plaintiff’s argument. Plaintiff can carry her burden in
opposing summary judgment by offering direct or circumstantial evidence that age was

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a “determining factor” in her termination. See Greene v. Safeway Stores, Inc., 98 F.3d
554, 557 (10th Cir. 1996).
The Court finds that Plaintiff has put forth sufficient evidence showing that: (1)
Plaintiff was terminated as a County employee, and (2) age was a determining factor in
that termination. The record shows that after November 4, 2008, Plaintiff held no
position with the County. (Dep. of S. Perry, at 91:8-20; 92:19-93:10.) The County’s
November 2008 Improvement Action Plan also indicates that the County intended to
dismiss Plaintiff when she returned from FMLA leave. (November 2008 Improvement
Action Plan, attached to SJ Response, Ex. 22.) Moreover, the County deactivated
Plaintiff’s e-mail account and building access while she was on FMLA leave, steps
normally taken when the County prepared to terminate an employee. (Dep. of C. EnosMartinez, p. 68:8-14, 71:13-16; Dep. of J. Rowland, at 198:1-10.) As such, Plaintiff has
put forth sufficient evidence supporting her contention that her employment with the
County was involuntarily terminated.1
Plaintiff has also submitted sufficient evidence showing that age may have been
a determining factor in her job termination. In 2008, the County created an “age
spreadsheet.” (Dep. of S. Conley, at 118:3-10; Age Spreadsheet, attached to Motion,
Ex. S.) While Defendant asserts that this spreadsheet was part of its succession
planning efforts, there is a dispute of fact as to this document’s actual purpose because
the spreadsheet was not a recommended succession planning tool, and it does not

1

Because the Court finds that there is a dispute of fact as to Plaintiff being
terminated by the County which precludes Defendant being entitled to judgment as a matter of
law on this clam, the Court does not reach Plaintiff’s constructive discharge argument. (SJ
Response at 39-40.)

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evaluate employees on any factor other than age. (Dep. of S. Acqufresca, at
84:17-85:4; Age Spreadsheet, attached to Motion, Ex. S.) Moreover, multiple
employees over the age of 50 were terminated by the County after the age spreadsheet
was created. (S. Diaz Affidavit; Dep. of C. Enos-Martinez, at 38:21-39:6.) As of
December 2010, the County’s Human Resources Department employed only one
individual out of five (twenty percent) over the age of 50. (Dep. of S. Perry, at
118:20-119:17.) When the age spreadsheet was created in 2008, four out of seven (57
percent) were over the age of 50. (Age Spreadsheet, attached to Motion, Ex. S.)
Accordingly, Defendant’s Motion for Summary Judgment on Plaintiff’s age
discrimination job termination claim is denied.
3.

Plaintiff's Compensation Claims Based on Age and Race
Discrimination

Defendant argues that it is entitled to summary judgment on Plaintiff’s
compensation claims based on age and race discrimination because Plaintiff received
bonuses and a raise in 2008. (Motion at 15.) Plaintiff does not dispute this argument in
her Summary Judgment Response, and Defendant has demonstrated that there is no
genuine issue of material fact preventing Defendant from being entitled to judgment as
a matter of law. See Celotex, 477 U.S. at 322. Therefore, Defendant is entitled to
summary judgment on Plaintiff’s compensation claims based on age and race
discrimination.2

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Plaintiff’s compensation based claims also include any claim Plaintiff may be
asserting that her failure to receive a 2007 pay raise was an independent adverse employment
action.

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4.

Plaintiff’s Claim that Defendant Discriminated Against Her through
the July 31, 2008 Improvement Action Plan

Defendant moves for summary judgment on Plaintiff’s claim that the July 31,
2008 Improvement Action Plan (the “Plan”) that Plaintiff received from the County was
an adverse employment action. (Motion at 1; SJ Reply at 14-19.) In response, Plaintiff
argues that Defendant never moved for summary judgment on her Plan claim, and that
the Plan constituted an adverse employment action. (SJ Response at 22-25.)
The Court first finds that Defendant moved for summary judgment on all of
Plaintiff’s claims, including Plaintiff’s Plan claim. (Motion at 1.) Additionally, the Court
finds that Plaintiff has abandoned any claim that the Plan was an adverse employment
action because it is not listed as such in this case’s Final Pretrial Order. (Final Pretrial
Order (ECF No. 132 at 2.)) The Final Pretrial Order controls the course of proceedings.
“[C]laims, issues, defenses, or theories of damages not included in the pretrial order are
waived even if they appeared in the complaint and, conversely, the inclusion of a claim
in the pretrial order is deemed to amend any previous pleadings which did not include
that claim.” Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002). As such, Plaintiff
has abandoned her claim that the Plan was an adverse employment action.3
5.

Plaintiff’s Hostile Work Environment Claim Based on Age and Race
Discrimination

Defendant moves for summary judgment on Plaintiff’s hostile work environment

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Because the Court finds that Plaintiff has abandoned her claim that the Plan was
an adverse employment action, the Court does reach the question of whether, in the
circumstances of this case, the Plan actually constituted such an action. The Court also does
not reach the question of whether, given the facts of this case, the Plan can be used as
evidence supporting Plaintiff’s other discrimination claims.

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claims based on age and race. (Motion at 1; SJ Reply at 19.) In response, Plaintiff
argues that Defendant has failed to meet its burden demonstrating that is entitled to
judgment as a matter of law on these claims. (SJ Response at 25-27.)
“‘For a hostile environment claim to survive a summary judgment motion, a
plaintiff must show that a rational jury could find that the workplace (was) permeated
with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.” Penry v. Fed. Home Loan of Topeka, 155 F.3d 1257, 1261 (10th
Cir. l998). In determining whether a work environment was sufficiently hostile or
abusive, courts examine “all the circumstances, including: (1) the frequency of the
discriminatory conduct; (2) the severity of the conduct; (3) whether the conduct is
physically threatening or humiliating, or a mere offensive utterance; and (4) whether the
conduct unreasonably interferes with the employee's work performance.” MacKenzie,
414 F.3d at 1273 (internal citation omitted). Additionally, “the environment must be
both subjectively and objectively hostile or abusive.” Id.
The Court agrees with Plaintiff that Defendant has not met their initial burden of
showing that there is an absence of a dispute of material fact regarding Plaintiff’s
hostile work environment claims that entitles it to judgment as matter of law. See
Celotex, 477 U.S. at 322. Indeed, Defendant does not specifically argue or articulate
that it is entitled to summary judgment on these specific claims in its Motion. As such,
Defendant’s Motion for Summary Judgment on Plaintiff’s hostile work environment
claims is denied.

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6.

Plaintiff’s Race Discrimination Claims

While Defendant moves for summary judgment on all of Plaintiff’s claims (Motion
at 1), Defendant did not make a specific argument or demonstrate as to why it is
entitled to judgment as a matter of law on Plaintiff’s race discrimination claims. As
such, Defendant did not meet its initial burden under Federal Rule of Civil Procedure
56, and it is not entitled to summary judgment on Plaintiff’s race discrimination claims.
B.

Motion to Dismiss
Also before the Court is the Motion to Dismiss a portion of Defendant’s

Dispositive Motions. (ECF No. 81) Defendant’s Motion to Dismiss, however, is
subsumed by Defendant’s Motion for Summary Judgment, and the Court’s ruling on
Defendant’s Motion for Summary Judgment effectively moots Defendant’s Motion to
Dismiss. See Brown v. Bd. of Educ. of Pueblo Sch. Dist. No. 1, No. 05-cv-02079, 2007
WL 389947, at *2 (D. Colo. Feb. 1, 2007). Defendant’s Motion to Dismiss is therefore
denied as moot. Accordingly, this Order constitutes the Court’s findings on the entirety
of Defendant’s Dispositive Motions.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Defendant’s Dispositive Motions (ECF No. 81) are GRANTED IN PART and
DENIED IN PART;

2.

Defendant’s Motion for Summary Judgment on Plaintiff’s hiring claims based on
age discrimination is DENIED;

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3.

Defendant’s Motion for Summary Judgment on Plaintiff’s job termination claim
based on age discrimination is DENIED;

4.

Defendant’s Motion for Summary Judgment on Plaintiff's compensation claims
based on age and race discrimination is GRANTED;

5.

Defendant’s Motion for Summary Judgment on Plaintiff’s hostile work
environment claim based on age and race discrimination is DENIED;

6.

Defendant’s Motion to Dismiss is DENIED as MOOT; and

7.

The Court finds that Plaintiff has abandoned her claim that the July 31, 2008
Improvement Action Plan was an independent adverse employment action giving
rise separately to a claim of discrimination.
Dated this 5th day of April, 2012.
BY THE COURT:

William J. Martínez
United States District Judge

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